Are They Watching You? That’s a Secret

By Noah Feldman -
Mar 3, 2013

Think Big Brother is tapping your
phone and reading your e-mail? Want to go to court and make the
government prove its surveillance program is constitutional?
Well, you can’t, according to the U.S. Supreme Court’s recent
ruling, because you can’t say for sure that your privacy has
been breached.

In case this Catch-22 doesn’t bother you enough, there’s
more. The court on Feb. 26 decided not to hear complaints
involving the Foreign Intelligence Surveillance Act, as amended
in 2008. That law says the government can intercept any
communication between the U.S. and any non-U.S. citizen abroad
provided its purpose is to obtain foreign intelligence (duh) and
it uses generic procedures to minimize privacy intrusion --
procedures that we are (surprise) not allowed to know.

It used to be that the government had to get case-specific
permission from the secret Foreign Intelligence Surveillance
Court for each wiretap. Since 2008, however, that court seems to
lack specific supervision authority: It just signs a blank check
for the system.

While the exact procedures remain behind a government veil,
what the law means in practice is modestly clear: officials
almost certainly start by accessing every phone call abroad and
every e-mail to a non-U.S. recipient, then use data mining to
“narrow” the search before drilling down. If this isn’t quite
what the Pentagon embarrassingly but accurately called “Total
Information Awareness” in 2002, it is certainly close.

The reason to think this is the system is that the
technology exists, and there is no other way to keep an eye on
such a large volume of communication. So every time you pick up
the phone to call London or e-mail someone abroad, a government
computer, and possibly a live intelligence officer, is in the
know. Think of it as Google Inc.’s Gmail on an even grander
scale.

Tracking Terrorists

OK, let’s say you have no secrets that you don’t want the
government to know and are happy to sacrifice some privacy to
help track terrorists. Even then, don’t you still want to know
how the Supreme Court reached its conclusion?

The court acknowledged the structure of surveillance, but
denied U.S. plaintiffs their day in court because they lacked
standing, which requires that an injury be “concrete,
particularized, and actual or imminent.” The catalog of reasons
that Justice Samuel Alito provided in his majority decision
makes for shocking reading.

For one thing, Alito wrote, the plaintiffs don’t know how
the government targets people -- so how can they think that
they’re targeted? The government might be using some other
method to spy on them, so how can they know it will use this
one? The security court might deny such authority, and because
its decisions are secret, they can’t know they haven’t been
targeted. The government might fail to capture their
communications with the target.

These arguments would be funny if they weren’t being used
to deny a hearing on constitutional rights that everyone knows
are real. Oh, and where did the arguments originate? From the
Barack Obama administration’s Department of Justice, which won
this grand victory by persuading the court’s five Republican
appointees and none of the Democratic ones, including Justice
Elena Kagan, Obama’s former solicitor general.

The plaintiffs, represented by the American Civil Liberties
Union, had a perfect rejoinder to these absurdist arguments: If
we don’t have standing to sue, no one ever will, and the
government’s post-2008 surveillance program will never be
subject to constitutional scrutiny.

No Standing

The Supreme Court rejected this argument, too. First, it
quoted a 1982 opinion by then-Justice William Rehnquist to the
effect that “the assumption that if respondents have no
standing to sue, no one would have standing, isn’t a reason to
find standing.” It then asserted, laughably, that the system
might still be reviewed if the government publicly used secretly
obtained information in prosecuting a defendant.

Finally, Alito explained that the government’s program was
subject to review by the Foreign Intelligence Surveillance
Court. Unfortunately, that court captures everything that has
gone wrong in the encroachment of secrecy into the
constitutional protections of the rule of law.

It was created in 1978 as secret body to review government
surveillance requests back in the dark ages, when specific
directives were still required for each wiretap. The government
always appeared in the court unopposed by any advocate for the
surveillance target; existing data suggest its requests were
almost never turned down. Perhaps the secrecy and non-
adversarial nature of the court was justified insofar as its job
was to grant warrants. But it should be obvious that such a
court cannot engage in serious constitutional review, because no
one other than the government appears before it.

Alito also said that the court has its own review panel, an
appellate “court” of three judges whose job is to review
denials in the unlikely event that the government should lose
its initial request. Like the regular court, the review panel
has no one before it but the government advocates. It was this
body that reviewed and affirmed the constitutionality of the
entire government surveillance program in 2008. The opinion, one
of only two ever issued by the panel, was released in a heavily
redacted form.

Still, we know that the review panel didn’t hear arguments
from anyone whose rights would actually have been infringed.
Instead, the argument against the constitutionality of the
surveillance program was mounted by the (anonymous)
telecommunications-industry service providers who were the
targets of the warrants issued by the surveillance courts. Two
main interests of those companies are to keep costs low and the
government happy -- hardly the basis for a rigorous adversarial
challenge to a government program based on national security.

By claiming that the review panel’s judgment is an adequate
avenue for constitutional review, the Supreme Court embraced the
creeping norm of secret and quasi-secret legal proceedings. The
Obama administration’s claim that the court satisfied due
process for U.S. citizens targeted abroad via secret internal
review is another version of the same tendency.

It’s always sad when a court won’t allow citizens to assert
their constitutional rights. When the Supreme Court says secret,
nonadversarial proceedings are good enough, it’s even sadder.

(Noah Feldman, a law professor at Harvard University and
the author of “Scorpions: The Battles and Triumphs of FDR’s
Great Supreme Court Justices,” is a Bloomberg View columnist.
Follow him on Twitter. The opinions expressed are his own.)

To contact the writer of this article:
Noah Feldman at noah_feldman@harvard.edu.